HKSAR v. Lau Chai Wah

CACC 315/2019

[2019] HKCA 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 315 OF 2019

(ON APPEAL FROM DCCC NO 849 OF 2018)

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D E C I S I O N

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1.The applicant applies for bail pending appeal.

2.On 18 July 2019, the applicant stood trial in the District Court before Judge Josiah Lam (the judge) on one charge of using a false instrument (Charge 1), three charges of fraud (Charges 2 to 4), and thirteen charges of theft (Charges 5 to 17).

3.During the course of the trial, the judge ruled that the applicant had no case to answer on Charges 1 and 2.  As for the remaining charges, the judge found, at the conclusion of the trial, the applicant was not guilty of Charges 3 and 4, and guilty of Charges 5 to 17.  On 10 October 2019, the judge sentenced the applicant to a total of 24 months’ imprisonment.

4.The charges on which the applicant was convicted involved a series of thefts by her between 1 September 2015 and 7 March 2016 of a total sum of $318,971.80 from CMA Secondary School (the School).  At the material time, the applicant held the position of the Administrative Officer of the School.

5.The applicant has filed an application for leave to appeal against her conviction only.  She advances four grounds of appeal in her challenge against her conviction.  Ground 1 is that the conviction was based on inadmissible hearsay because there was no evidence of the monies having been taken or were missing.  Ground 2 is that there was no evidence that the signature on the relevant cheques was that of the applicant.  Ground 3 is that there was no evidence as to the authorship of the name “Cheria” that was written on the box.  Ground 4 is that there was no direct evidence that the applicant received the sums of monies particularised in the charges.

6.A person convicted and sentenced to a term of imprisonment does not have a right to bail pending appeal.  However, the Court of Appeal has a discretion to admit an appellant to bail pending appeal “if it thinks fit”, but such discretion will only be exercised if there are exceptional circumstances and it is just to do so.  It is accepted that in deciding whether to grant bail pending appeal, relevant considerations generally involve the strength of the grounds of appeal, and the length of sentence served by the time the appeal is heard.  Bail may be granted where there is a reasonable prospect of success of the appellant’s appeal, or where there is a risk that the sentence imposed on the appellant will have been served by the time the appeal is heard, subject to the appellant having a reasonably arguable case on appeal.

7.The thefts took place when the applicant was the Administrative Officer of the School, who was responsible for keeping the School accounts and handling monies collected from students.  Four teachers (PW2, PW13, PW14 and PW15) testified that, variously between 1 September 2015 and 7 March 2016, they collected monies from students for school tours or events which were required to be deposited into the School’s bank account as soon as practicable.  The teachers testified that they either gave the monies to the applicant or to staff in the general office of the School. 

8.On 13 June 2016, the applicant resigned from her position and an audit of the accounts revealed that total sum of $331,419.00 was missing.  Later in February 2017, a box bearing the name “Cheria” was found at the School, containing items given to the applicant and 11 cheques. The cheques were of the applicant’s bank accounts in various sums payable to the School and signed.  Each cheque was clipped or stapled to a document or documents, identifying that the sum related to the collection of monies for the School.  One cheque had the total amount of three sums relating to Charges 9, 15 and 16; the other ten cheques had sums relating to Charges 5, 6, 7, 8, 10, 11, 12, 13, 14 and 17.  A piece of paper was uncovered from the applicant bearing 11 sums equivalent to the sums of the 11 cheques.

9.The judge concluded that on the circumstantial evidence the applicant had stolen the monies from the School, as evidenced by her writing up 11 personal cheques in a sum payable to the School that correlated to records of monies collected by the School.

10.The applicant neither gave evidence, nor called evidence on her behalf.

11.Mr Andrew Bruce, SC, with Mr David Khosa, for the applicant, argues that the judge’s reasoning was flawed because of his failure to address important matters concerning whose signature was on the 11 cheques, the location and circumstances of the finding of the box, the name on the box, and the monies that were collected and received.

12.Ms Paggie Lee, for the respondent, submits that there was a strong circumstantial case against the applicant as found by the judge.  She points out that the 11 cheques belong to the applicant and attached to 7 cheques was a record of collected fees and to the remaining 4 cheques was a list of fees.

13.This was a case where the applicant was hoisted by her own petard.  The cheques were strong evidence against her together with attached records showing the collection of fees and a list by the applicant that correlated with the sums made payable to the School set out in the cheques. There was the missing monies; the monies were recorded as having been collected and in various instances received by the applicant; the applicant was responsible for keeping accounts and banking monies received into the School bank account; the cheques were payable to the School in the amounts as set out in the attached documents, evidencing the monies had been collected by the School; and a piece of paper was recovered from the applicant which correlated with the sums of monies as represented by the cheques.  These points were articulated by the judge in his reasons for verdict and formed the basis of his conviction of the applicant for the theft offences.  Whilst this was a circumstantial case, it was one where the evidence was compelling and the judge drew the only reasonable inference of guilt in relation to the theft offences. 

14.Despite the very able submissions of Mr Bruce, I am not convinced that there is a reasonable prospect of success on the grounds against conviction as advanced by the applicant.  The applicant does not satisfy the reasonable prospect of success limb.

15.The applicant was sentenced to 24 month’s imprisonment on 10 October 2019 and will be eligible for discharge from prison on 8 February 2021, taking into account one-third remission for good conduct.  I am informed that the applicant’s appeal is likely to be fixed in the early part of next year.  The applicant does not satisfy the time served limb.

16.For the reasons I have given, I refuse the applicant’s application for bail pending appeal.

Ms Paggie Lee, SPP (Ag), of the Department of Justice, for the respondent

Mr Andrew Bruce, SC and Mr David Khosa, instructed by Patrick Chu, Conti Wong Lawyers LLP Solicitors, for the applicant